Monday, January 18, 2021

The Imminent Failure of the American Experiment


When we join together to form a civil society, we make a very profound decision: We limit some of our rights in exchange for vesting the government with certain powers.   We make this decision in order to protect our rights and create a society in which we can flourish, free from the challenges inherent in living in a chaotic, violent world.  

We grant the government a monopoly of the use of force.  We all agree to forgo violence, retribution, revenge, mob action, and the initiation of aggression.  In exchange, the government agrees to protect our rights, our property, and our persons from violation by others.  

This is a very dangerous thing to do.  A powerful state with a monopoly on violence is perhaps the most dangerous thing in the world, second only to the malarial mosquito. We would only agree to such an arrangement if we felt that there were enough limits on that power to safeguard us against government aggression and oppression. 

The American Experiment is an audacious one.  Can a nation, conceived in Liberty, and dedicated to the proposition that all men are created equal, endure for very long.  We had a good long run, but that experiment is at currently at risk. 

The US Constitution is an effort to create a government that is limited in its powers and yet still has enough power to function.  We created a government of limited, enumerated powers.  We purposely set up three separate branches that must cooperate and have the power to check each other.  We structured the institutions in a way that builds trust in the basic fairness of government.  We created of the Bill of Rights that giveprotections to the individual from the State, and to the minority from the majority, and adherence to the Rule of Law.   

In this way we seek to balance the need for police powers, tax collection, representation, and punishment with individual rights, civil liberties, freedom, and property rights.   Each concession of rights must be counter balanced in a way that ensures we can trust the outcomes to be fair. 

We created our political system to be divorced and separate from our personal lives.  The protections against bills of attainder, the limitation on search and seizure, the prohibition of the establishment of religion, and the creation of a government of limited powers all support the idea that the political realm is separate from the personal. 

We are a nation of Laws, not of Men.  We agree to create agovernment, elect our representatives, and define the processes by which laws are made with limits and protections for our rights and liberties. We then agree tlive peacefully under the laws that we create, with just punishments for violating the law, and with our Freedoms and Liberty protected. 

We created protections, large and small, to ensure the rights of the people are not violated. The sum total gives us the faith in due process and the rule of law that we can function as a civil society.  Unfortunately, we have been steadily eroding these institutions and our faith in them for a long time.  

Separation of Powers allows each of the three branches to check the powers of the others to safe guard the people and the Constitution.  This balance has been destroyed.  

The Supreme Court has run amok, becoming a policy making body that looms too large in our governance.  They make baffling decisions that manufacture rights and legal theories out of thin air.  They simultaneously defer too much power by allowing Executive agencies to have the final say, and accrue too much power by making law and deciding policy issues.  The wild histrionics over each Supreme Court vacancy tells you all you need to know about the distorted power of the court over American law, policy, and the citizenry.  

The Congress has effectively ceased to function.  They have not passed a budget, the sole duty assigned in the Constitution, in over a decade while operating the government through arcane parliamentary shenanigans.  They pass massive omni-bus bills that the people or our representatives cannot read prior to the vote.  When they do pass legislation, it consists of broad policy outlines with the actual detail of the laws to be written by the executive bureaucracy. 

The Executive branch has accrued too much power.  The President no longer merely enforces the laws. He decides what the law is, which laws will be enforced, and creates laws out of whole cloth through executive orders. 

Less than half of Americans approve of the Supreme Court, down from 62% only 20 years ago.  Congressional approval stands at 15% as of December, 2020, down from 70% fifty years ago.  Presidential approval has also declined, with average approval ratings showing a steady decline from Reagan (55), Bush (60), Clinton (55), Bush (49), Obama (47), Trump (41).  We are now in our 20th year in a row with Presidential approval ratings below half the population.  

When overall approval for the government is below 50% for extended periods of time, it does not bode well for the future. 

We no longer have Limited Government. There are nomeaningful restrictions on the power of the State that remain. This is because, as Jefferson put it, the natural progression of things is for the State to gain power and for Liberty to yield.  But we are doing our best to accelerate the process.  

The Supreme Court has issued wildly expansive rulings on the limits of power.  The War on Drugs and the War on Terror have inserted the government in to every nook and cranny of American life. You have no privacy, digital or otherwise, under the law. The regulatory state reaches every aspect of your life.   Selling unpasteurized milk, digging a hole in your yard to catch rainwater, swimming alone in the ocean, making an onion ring from diced onion, possessing too much cash, or taking a selfie in front of a bridge, will all land you in trouble with the law.  From the food we eat, the pillows we sleep on, and the amount of water allowed when we flush, there is virtually no aspect of our life that is not regulated by the Federal government. 

We are a Nation of Laws, not of men.  We are supposed to enjoy equal protection under the law as a part our bargain with the government.  That contract is broken.  Law enforcement appears to be selective, biased, and lacking in good faith.  We see prominent politicians and wealthy families commit crimes with little or no consequences, while the poor and those on the ‘wrong’ side of the political aisle are prosecuted with vigor.   We see draconian punishment used as a weapon to induce plea deals for crimes that were never committed.  We see process crimes prosecuted without an actual underlying crime.  The entire judicial system has been rigged for the benefit of the elites. 

The President now has the power to arbitrarily enforce, or not enforce, the law he sees fit on a whim, while being also being able to create law from whole cloth through Executive Order. This is further illustrated when we see the spectacle of an obviously unconstitutional Executive Order used to create DACA deferments for illegal aliens, a law that Congress debated and voted not to pass, be approved by the Supreme Court.  Then the Supreme Court denies the next President the ability to repeal the unconstitutional orders of his predecessor, effectively destroying the powers of the Congressional and Executive branched in a single decision.

All of this would not matter that much if the people retain their rights as protected under the Constitution.  We could simply debate the issues and throw the bums out of office.  

But alas, our liberties and rights are also under deadly assault.  

The US Constitution expressly guarantees Free Speech.  This is a foundational principle of our governance and for a very good reason.  If we are to be governed by ideas and laws, we must be able to talk and debate these ideas.  Without open debate we will not be able to resolve our differences.  We will not be able to convince, or not convince, our fellow citizens of the merits of our ideas.   There is a growing movement to silence free speech.  

The de-platforming of the President of the United States is only the latest outrageous assault on free speech.  The power of the Big Tech companies to not only suppress speech they don’t like, but to literally erase history and facts that they don’t like is alarming.  The bias of search engines, the suppression of speech, and the ‘memory holing’ of facts that counter the prevailing narrative are deeply offensive to free speech and liberty. 

A free Press is a bulwark of liberty.  A press that is captive to one political ideology, or a press that is unwilling to fairly report the facts, is a threat to Freedom.  President Trump has called the press ‘the enemy of the people’ and for very good reason.  The press today are partisan liars that are not only fail to live up to their duty to communicate with the people and keep the government free of corruption, they are actively undermining the Constitution.  The number of ‘journalists’ who are actively opposed to Free Speech is astounding.  The First Amendment should be inviolate to all Americans, but specially so to people whose entire reason for existence is dependent on these particular freedoms.  Speech codes, cancelling people for opinions we don’t like, de-platforming and extortion schemes against people you disagree with are not only threats to the First Amendment, they are deadly threats to our nation. 

They call it ‘Fact Checking’ to suppress the actual facts and reinforce their own lies.  They call any speech they don’t agree with ‘hate speech’ or politically incorrect.  They prevent people from talking by calling normal conversation ‘micro-aggression’ and blur the words/weapons line by claiming that ‘speech is violence’. Or, amazingly, that non-speech is violence when they proclaim that that ‘silence is violence’. 

Again, none of this would be as dangerous if our institutions were non-partisan, non-corrupt, and independent.  But they are not.  

We create impartial institutions to enforce our laws.  They stand outside the political process and simply enforce the rules we all agree to live under.  The police, the fire department, the courts, the FBI, the bureaucracy are all supposed to be impartial.  That paradigm is broken.  

The FBI is openly partisan.  SWAT team arrests of 65-year-oldpolitical advisors, a dozen agents to investigate a piece of rope, and detailed forensic analysis of cell phone data to track down Capitol building intruders, plotting to entrap political advisors with ambush interview all stand in sharp contrast to the treatment of people from the other side of the political aisle.  Lying to FISA courts to spy on political campaigns, then ‘losing’ the evidence of their malfeasance, conducting a three-hour interview of Hillary Clinton with no recordings, no notes, and no finding of criminality despite mountains of evidence in plain sight, possession of incriminating materials and lying about having it, never mind actually investigating the contents.    The FBI has become a political actor, and this is a profound threat to the nation. 

The Department of Justice has perverted its mission from enforcing the law to political extortion and policy making.  Vast swaths of law go unenforced because the Executive branch doesn’t like, for example, the Defense of Marriage Act.  Process crimes are brought against innocent people with no underlying criminal charges.  Civil rights violations are created out of whole cloth, charges brought to bear, and the target companies extorted to make payments to favored political organizations.  The DOJ engages in overtly criminal behavior like running guns into Mexico with no consequences when the scheme is finally uncovered.  The DOJ has become a political actor, and this is a profound threat to the nation. 

The right to select our representative is foundational to our nation and our governance compact.  The entire basis of the Revolution and a large part of the founding documents is the idea that there will be no taxation without representation.   The right to vote is sacrosanct, and a large part of our national history is the struggle to expand that franchise and ensure that everyone is able to have their vote counted.  Faith that elections are free, fair, and that they represent the Will of the People is a critical component to the peaceful transition of power.  

Anything and everything that undermines our faith in the one man, one vote formula is a threat to our nation.  Those threats have multiplied recently. 

Spurious claims of stolen elections are very dangerous to our faith in election results.  When Stacey Abrams is feted on news programs for two years claiming to be the legitimate governor of Georgia, or when Hillary Clinton claims Trump is ‘illegitimate’ for four years after the election, and when Trump claims he won the election even when he has produced very little evidence of provable voter fraud, the effect is to undermine our faith in elections and our nation. 

When voting the voting itself is subject to massive statistical anomalies, mysterious vote count stoppages, vote counting done in the dark of night and without proper supervision, when ballots are mailed out indiscriminately, when there are no controls over voter drop boxes or there is a lack of places to easily drop ballots off, when voter registration rolls are not cleansed or audited, when no ID is required, when ballots are harvested and we have video recording of ballot harvesters cheating, when election workers are wearing masks proclaiming their political allegiance while they are counting the votes, when same-day voter registrations allow precincts to report 200% voter turnout, and when the vote count counters are trained on how to prevent observers from effectively observing, you create the impression that the results cannot be trusted.  

The Constitution provides that the Right of the People to Keep and Bear Arms shall not be Infringed.  This right, as affirmed by the Supreme Court, is once again under attack.  The Biden administration has announced plans for wide array of gun control measures, including outright bans on ownership and gun confiscation.  During a time when the people have high trust in the government, such measure are likely to cause unrest and resistance.  At a time when trust in government is at a 100-yearlow, it could prove disastrous.  

The Founders also feared the Mob. They expressly rejected a democracy as a viable form of government.  They knew that majority rule would lead to mob rule, and rights of the minority would soon be forfeit.  They instead created a representative republic where the rights of all citizens were protected by the Constitution.  Minority rights were also protected in the design of the bicameral legislature, the arcane process of creating legislation, the filibuster, and super majority requirements for certain critical votes. 

We are rapidly eroding the protections against mob rule.  We hear endless calls to abandon the Electoral College.  We have abandoned the filibuster almost completely, with the last few vestiges of it expected to be swept away with the new Congress in 2021.  

The institutions and rules that we have relied upon for 225 years to ensure a peaceful transition of power are being swept away and undermined.  We have lost faith in Congress and the Supreme Court.  Our support for the Presidency largely depends on who is in office, our party or the opposition.  Our speech is being curtailed, our freedoms abridged, and we risk everything if we try to speak out or protest.  Our intuitions have been corrupted, our elections are suspect, and our media is living inside its own imagination.  

It won’t take much of a shock to the system to make it all collapse like a giant game of Jenga.

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